Odisha High Court delivered a judgment in favor of a same-sex couple to continue living with each other.
A division bench comprising of Justice SK Mishra and Justice Savitri Ratho pronounced the order on a habeas corpus petition filed by one of the partners. “The state shall provide all kinds of protection to them, including the right to life, right to equality before the law and equal protection of the law," said the bench in order to protect their rights. They also extended the protection of domestic violence law to the woman partner and stating that human beings, irrespective of gender identities, are entitled to the full enjoyment of their rights.
The Petitioner had filed a writ of habeas corpus with reference to Article 226 and 227 of the Constitution asking for the release of her woman partner, complaining that she was being kept away by her mother and uncle at Bari in Jajpur district, reported Hindustan Times. The family members of the petitioner's partner were going to forcibly arrange her marriage with someone else, she had said while seeking the court’s intervention.
The court accepted then the petitioner's right to be treated as a male as he exercised his right to self-gender determination and preferred to be addressed as he or his.
The lawyer of Chinmayee said that they were living in a consensual relationship from 2017. The lawyer said that they were in love with each other since 2011 and also, they have decided to live together. It was further being justified with reference to the Protection of Women from Domestic Violence Act 2005 the government has recognized the live-in relationship by giving rights and freedoms. Justice SK Mishra while referring to the Judgement of the Top Court of National Legal Services Authority vs. Union of India and others,2014 and Anuj Garg vs. Hotel Association of India 2008 said ‘that all humans have the universal right to enjoy, the right to equality and non- discrimination, right to life, etc.’
Hon’ble Judge also referred the case on Navtej Singh Johar vs. Union of India AIR 2018 which held section 377 of the IPC 1860 which punishes identical couples misbehaves Article 14,15,19, and 21 of the Constitution of India. Thus, justice ordered that the state should provide all the security possible to Rashmi so that the couple would start living together, as mentioned in Part-III (fundamental rights) of the Constitution by the bench, and allowed her to move-in with the petitioner.
Justice Ratho made clear to the victim woman that merely because the writ petition had been filed making an allegation of illegal restraint, she was not under any obligation to join the company of the petitioner and she could stay with her parents if she chose to. But the woman very firmly stated that she wants to stay with her partner (the petitioner) without further delay.
Justice S K Mishra, who headed the bench, ruled that “the duo have the right to decide on their sexual preference, the mother, who is a widow, and the sister would be allowed to visit the woman at the petitioner's house”, he said.
Justice Savitri Ratho said that freedom of choice was available to the two, who have decided to live together. “The society should support their decision. We hope and trust that the duo will lead a happy and harmonious life," Justice Ratho added.
On the other hand, Justice Ratho in her order said that Rashmi should not forget her mother and sister as the mind-set of the society is different and it is difficult for both of them to accept the relationship. So, Judge Ratho ordered Rashmi to take good care of her mother and sister and help them with financial problems and social wellbeing. And she also said that the mother and sister of Rashmi should not create any problem between Rashmi and Chinmayee Jena.
The bench also made sure that the woman will join the company of the petitioner on account of judicial intervention, but no one can restrict her if she wants to part ways with the petitioner or go back to her mother.
This is one example of the acceptance of same-sex live-in relationships. Another example can be given with reference to The Uttarakhand High Court has accepted that even though same-sex couples may not be eligible to marry yet, they still have the right to live together.
In a judgment passed on 12 June 2020, Justice Sharad Kumar Sharma observed: “Even if the parties, who are living together belonging to the same gender are not competent to enter into a wedlock, but still, they have got a right to live together even outside the wedlock”.
Though for the timing same-sex marriage has not been recognized in India but the slow acceptance of same-sex relationships can be seen.
The document attached below denotes the writ petition filled to Odisha high Court by the Petitioner;